Unfair dismissal and out of hours conduct

The following is a passage from a recent decision of the Fair Work Commission in an unfair dismissal claim brought be a Qantas flight attendant who had been dismissed by the airline for conduct whilst on a “slip” (ie a roster of overseas flights)  but while out of uniform and out of working hours at a bar in the United States. It summarizes the necessary causal connection between the event and the conditions before it becomes a non-private matter.

“Out of hours conduct

It is well established that in some circumstances an employee may be validly dismissed because of out of hours conduct.84

The issue of off duty conduct of flight attendants in slip ports has been considered by the Commission in Roach v Qantas Airways Limited85. There SDP Cartwright held that “from the point when a flight attendant signs on for a pattern of duty, including ‘slip time’, he or she is in a safety critical role, for which Qantas is subject to regulation by the Civil Aviation Safety Authority” and “the availability and fitness for duty of flight crew through the full pattern is a legitimate concern for the airline.” 86

Similarly in Farquharson v Qantas Airways Limited87, the Full Bench found that it was “the peculiar circumstances attending slip time in a foreign port that give Qantas a legitimate interest in the slip time conduct of its flight crew that is far greater than the usual interest of an employer in the off duty conduct of its employees.”88

The nature of the employment in question, and the statutory, contractual and other legal obligations applicable to such employment, affect the capacity of an employer to issue lawful directions concerning out-of-hours conduct.89

I find that when flight attendants are on slip in an overseas port, despite being off duty, they nonetheless remain subject to the relevant QCCA policies and requirements regarding their conduct. Mr Urso did not challenge the assertion that he was aware of the policies that he was obliged to comply with.”

Urso v QF Cabin Crew Australia Pty Limited T/A QCCA (2018) FWC 4436 delivered 31 July 2018 per Dean DP